Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.

Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.

A few problems with these two paragraphs:

(1) The federal tax AIA bar does not arise “because the government tried to argue that the individual mandate can be justified under Congress’s power to tax.” In fact, such an assertion is doubly wrong. First, the issue arises because the statutory text of the ACA requires that the tax penalty be assessed and collected in the same manner as other tax penalties that cannot be challenged pre-enforcement because of the federal tax Anti-Injunction Act. Second, Rivkin & Casey’s opposing counsel disclaim a connection between the constitutional justification of the tax penalty as a tax and the operation of the AIA as a bar. Although one would not know it (and would probably think the opposite) from reading the Rivkin & Casey op-ed, the Supreme Court has held that a challenge to a penalty may be barred by the AIA even if the penalty is not “justified under Congress’s power to tax.”

(2) The split on the AIA in the circuit courts of appeals is 2-1, the same as the split on the unconstitutionality of the individual mandate. If these splits were predictive, then Rivkin & Casey should predict that their challenge will lose on the merits.

(3) The connection between the tax penalty for non-compliance with the insurance requirement and the “federal tax apparatus” is not limited to the means of enforcement. The calculation of the penalty (and therefore the assessment of the amount due on one’s tax return) depends on other elements of an applicable individual’s tax return.